Abdullaeva v. Garland

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NARGIZA ABDULLAEVA, Plaintiff, v. MERRICK GARLAND, et al., Defendants.

No. 1:23-cv-741

United States District Court, N.D. Ohio, Eastern Division

November 2, 2023

MEMORANDUM OPINION AND ORDER

BRIDGET MEEHAN BRENNAN JUDGE

Plaintiff Nargiza Abdullaeva filed a Complaint for declaratory and injunctive relief under the Administrative Procedure Act including a petition for a writ of mandamus directed to the United States Citizenship and Immigration Services (“USCIS”) department. (Doc. No. 1.) Defendants answered (Doc. No. 8), and also filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. No. 6). Plaintiff filed a brief in opposition to the motion (Doc. No. 7), and Defendants replied (Doc. No. 10). For the reasons that follow, the motion to dismiss is GRANTED.

I. Background

In 2005, Plaintiff came to the United States on an F-1 student nonimmigrant visa. (Doc. No. 1 at ¶ 18.) In 2010, the government initiated removal proceedings. (Id. ¶ 21.)

On May 18, 2007, Plaintiff married her husband, who at the time was a lawful noncitizen resident. (Id. ¶¶ 19-20.) On November 19, 2020, Plaintiff's husband filed Form 1-130 “Petition for Alien Relative” on her behalf. (Id. ¶ 22.) The removal proceeding against Plaintiff remained pending. (Id. ¶¶ 21, 24.)

On February 15, 2019, Plaintiff's husband became a U.S. citizen. (Id. ¶ 22.) Over two years later, on May 10, 2021, Plaintiff filed Form I-185 “Application to Register Permanent Residence or Adjust Status.” (Id. ¶ 23.)

By law, while a removal proceeding is pending, the presiding immigration judge has exclusive jurisdiction to hear an application for change in status. 8 C.F.R. § 1245.2(a)(1)(i). A year later, on March 14, 2022, USCIS voluntarily dismissed its removal proceeding against Plaintiff. (Doc. No. 1 at ¶ 24.)

Shortly thereafter on June 10, 2022, USCIS interviewed Plaintiff. (Id. ¶ 25.) USCIS issued a Notice of Interview Results indicating in part that her case was being held for review. (Id. ¶ 26.)

According to the Complaint, USCIS indicates that the average processing time for Form I-485 at the Cleveland Field Office is 14.5 months. (Id. ¶ 32.) Plaintiff filed her complaint and mandamus petition in this Court on April 12, 2023. That filing occurred less than a year from the date when the removal proceeding terminated. (Id. ¶ 24.)

II. Law and Analysis

Plaintiff argues that this Court has subject-matter jurisdiction. (Doc. No. 7 at 70-71)^[1]Defendants do not challenge this Court's subject-matter jurisdiction. (Doc. No. 10 at 88.) The Court now considers the pending Rule 12(b)(6) motion.

A. Standard of Review

When addressing a motion to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded material allegations in the complaint as true. United States ex rel. Ibanez v. Bristol-Myers Squibb Co., 874 F.3d 905, 914 (6th Cir. 2017) (setting forth the standard of review for a motion to dismiss); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The sufficiency of the complaint is tested against the notice pleading requirement that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]” Fed.R.Civ.P. 8(a)(2). Although this standard is a liberal one, a complaint must still provide the defendant with “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,” to state a plausible claim. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

The concept of facial plausibility “does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence [of liability].” Twombly, 550 U.S. at 556. However, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). As such, the court will not permit “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . .” Id. at 778 (citations omitted).

If a plaintiff pleads facts that reveal a flaw in the claim or substantiate a defense, she may plead herself out of federal court. In other words, “sometimes the allegations in the complaint affirmatively show that the claim is [deficient or disallowed as a matter of law]. When that is the case, as it is here, dismissing the claim under Rule 12(b)(6) is appropriate.” Cataldo v. U.S. Steel Corp., 676 F.3d 542, 547 (6th Cir. 2012); see also Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010); O'Gorman v. City of Chicago, 777 F.3d 885, 889 (7th Cir. 2015) (“A complainant can plead himself out of court by including factual allegations that establish that the plaintiff is not entitled to relief as a matter of law.”).

B. Change in Status Application

Federal law provides a mechanism for a change in a noncitizens's residential status:

The status of an alien who was inspected and admitted . . . into the United States . . . may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.

8 U.S.C. § 1255(a). “An application for adjustment of status is submitted on Form I-485 ....” 8 C.F.R. § 1245.2(a)(3)(ii).

USCIS “has jurisdiction to adjudicate an application for adjustment of status filed by any alien, unless the immigration judge has jurisdiction to adjudicate the application under 8 C.F.R. 1245.2(a)(1).” 8 C.F.R. § 245.2. “In the case of any alien who has been placed . . . in removal proceedings (other than as an arriving alien), the immigration judge hearing the proceeding has exclusive jurisdiction to adjudicate any application for adjustment of status the alien may file.” 8 C.F.R. § 1245.2(a)(1)(i).

1. Relevant Timeframe

Plaintiff acknowledges that the removal proceeding against her terminated in March 2022. (Doc. No 7 at 76.) Plaintiff further confirms that she “appeared for her adjustment of status interview on June 10, 2022 and provided testimony under oath in support of her eligibility for adjustment of status.” (Id.) See generally 8 C.F.R. § 1245.6.

Plaintiff does not offer argument or legal authority for why the Court could or should consider the amount of time her application was pending and subject to the removal proceeding immigration judge's exclusive jurisdiction. See generally McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”) (quoting Citizens Awareness Network, Inc. v. United States Nuclear Regul. Comm'n, 59 F.3d 284, 293-94 (1st Cir. 1995)). Plaintiff's brief in opposition to the motion thus waives or abandons her original suggestion in the Complaint that the relevant timeframe runs from the date she initially filed Form I-485.

Having conceded the relevant timeframe, the question now before the Court is whether USCIS's failure to render a decision on Plaintiff's Form I-485 from March 2022 onward warrants either a writ of mandamus or relief under the APA.

2. Ministerial Task

Plaintiff's argument on both counts in her Complaint is that there has been an “unreasonable delay in issuing a decision.” (Doc. No. 7 at 69.) Her Complaint “seeks to compel the ministerial task of completing adjudication of an adjustment of status application[.]” (Id.; see also Doc. No. 1 at ¶ 5.)^[2] Plaintiff's case explicitly rests on the characterization that a decision on a change of status application is a ministerial task.

That characterization is at odds with longstanding precedent. Section 1255 -

contains certain objective prerequisites which must be met before the relief afforded by that section is available. Once these conditions are satisfied, then the alien has the burden of persuading the Attorney General to exercise his discretion favorably.

Simply because an alien fulfills the preliminary requirements, does not mean that he will automatically be accorded adjustment of status. Because this form of relief circumvents ordinary immigration procedures, it is extraordinary and will be granted only in meritorious cases, and the burden is on the immigrant to prove that his case is meritorious.

Chen v. Foley, 385 F.2d 929, 934 (6th Cir. 1967) (citation omitted). “Adjustment of status is therefore a matter of administrative grace, not mere statutory eligibility.” Ameeriar v. Immigr. & Naturalization Serv., 438 F.2d 1028, 1030 (3d Cir. 1971); accord Sanghavi v. Immigr. & Naturalization Serv., 614 F.2d 511, 513 n.2 (5th Cir. 1980); Putrus v. Montgomery, 555 F.Supp. 452, 455-57 (E.D. Mich. 1982).

The United States Supreme Court recently endorsed this doctrinal view. Discussing a request for change in status under Section 1255, the Supreme Court explained:

To be eligible for such relief, a noncitizen must show that he satisfies various threshold requirements established by Congress. Yet

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